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The makers of superhero MMORPG City of Heroes come out on top as a judge throws out Marvel Comics’ trademark claims - leaving the way open for online super heroics to continue.

City of Heroes

Cryptic Studios' City of Heroes is a massively multiplayer online role-playing game (MMORPG) PC game system, where players become super-powered heroes, and fight against evil to save the world. The game recently had its UK/European launch at a prestigious event at the Virgin Megastore on London’s Oxford Street.

Widely regarded in gaming circles as a true departure from the MMORPG market – which is primarily filled with medieval fantasy-based titles - the game allows players to create super-powered heroes and battle villains in the complex virtual online world of Paragon City. Players to realise their comic book dreams in the online environment, all the while protecting the fine citizens of Paragon City in a colourful 3-D world where the victims of crimes not only thank players for their help, but can even compliment players on their costumes!

But the game has attracted controversy, with some comic book creators and copyright holders claiming that the game builds on a fantasy premise that could be construed as infringing on their property. Now a U.S. district court judge in Los Angeles has dismissed several key claims by comic book publisher Marvel Enterprises, Inc in the company's trademark and copyright infringement case, against City of Heroes online computer game publisher NCsoft Corporation and game developer Cryptic Studios.

Marvel sued NCsoft and Cryptic Studios in November of 2004, claiming that the City of Heroes online computer game allows players to imitate comic book characters owned by Marvel. In a March 9 order, U.S. District Court Judge R. Gary Klausner agreed with NCsoft that some of Marvel's allegations and exhibits should be stricken as ‘false and sham’ because certain allegedly infringing works depicted in Marvel's pleadings were created not by users, but by Marvel itself.

The judge also dismissed more than half of Marvel's claims against NCsoft and Cryptic Studios, including Marvel's claims that the defendants directly infringed Marvel's registered trademarks and are liable for purported infringement of Marvel's trademarks by City of Heroes' users. In addition, he dismissed Marvel's claim for a judicial declaration that defendants are not an online service provider under the Digital Millennium Copyright Act. The judge dismissed all of these claims without leave to amend, meaning that Marvel cannot now re-file these claims.

Copyright Law

Although the judge in the case allowed certain claims to survive the motion to dismiss, NCsoft and Cryptic Studios are pleased with the result and are confident that both the law and the facts will support their case. In fact, citing a 1984 Supreme Court case holding that the sale of video cassette recorders did not violate copyright law, the Court noted that: "It is uncontested that Defendants' game has a substantial non-infringing use. Generally the sale of products with substantial non-infringing uses does not evoke liability for contributory copyright infringement." Only "where a computer system operator is aware of specific infringing material on the computer system, and fails to remove it, the system operator contributes to infringement," the Court stated.

The innovative character creation system in City of Heroes ensures that players can be the hero they've always dreamed of – and the resulting game is - arguably – the closest computer game yet to the paper-and-pencil role-playing games of yesteryear, typified by TSR’s Dungeons & Dragons titles, Golden Heroes, GURPS, Bushido, GDW’s Traveller and FASA’s The Doctor Who Role Playing Game.

Since the game provides literally billions of costume and power combinations, it is almost impossible to create a hero that isn't unique. The system is simple for users, but provides many layers of customization.

First, players choose from a set of five superhuman ‘Origins’:

1. Mutant
2. Science
3. Technology
4. Natural
5. Magic.

Once players know how their super-powered hero got his or her powers, they decide upon an ‘Archetype’:

1. Blaster
2. Controller
3. Defender
4. Tanker
5. Scrapper

This selection determines the type of powers the players can select. Then players design their heroes' all-important image, by choosing everything from body sizes and styles, skin colour and hair, upper and lower body appearance, icons, masks, hats and headdresses...even selecting tails and antennae, if they take their fancy!

Players then take their truly original hero out into the streets of Paragon City. Heroes start their careers by foiling petty crimes like purse snatching, but as heroes gain more experience, they learn new powers to battle evil. The heroes meet the city's people who help the hero to stop evil plots by one of the villain groups in the game. Each epic adventure reveals the background of Paragon City and uncovers the mysteries of its villains.

Ground-Breaking RPG

"City of Heroes is a ground-breaking title," says Cryptic Studios CEO Michael Lewis. "Not only does it give the MMORPG community an exciting and fun alternative to sword and sorcery games, it has mass appeal because virtually everyone at one point or another has wanted to be a super-powered hero."

The game designers boast that it is easy to learn and sports state of the art 3-D graphics. Depending upon the hero's powers, a player may soar through the city's skyline, leap tall buildings, or run at super-speed. If a player has seen it in the pages of a comic book, they will be able to live it out in the game.

True to the genres comic book roots, the City of Heroes game also links with a monthly comic title - which is sent to subscribers free of charge. Rick Dakan and Blue King Studios publish the comic book of the same name. One of the original visionaries behind City of Heroes, Mr. Dakan developed much of the games milieu and back story. The comic book also serves as a home for fiction and art from fans/players, interviews with the developers and tips on playing the games itself.

We Could Be Heroes

Fancy dipping a super-powered toe into the world of Paragon City? Well, the City of Heroes game start up pack retails at around £30.00 – with monthly subscription charges on top of that, depending on how long you want to sign up for. From there – much like conventional role-playing - the virtual super world you find yourself in is pretty much yours for the taking. So if foiling bank robberies, flying high over the cityscape, doing battle with super villains – and other players – sounds like your thing, this may just be the MMORPG for you.

For much more information about City of Heroes, visit the official European web site of the game: eu.cityofheroes.com

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